Organizing for Influence: Developing Countries,
Non-Traditional Intellectual Property Rights
and the World Intellectual Property
Organization
Andrew J. Grotto1
Introduction
I.
II. International Trade, Institutional Convergence and Poverty Reduction
III. Working Typology of Successful Developing Country Negotiating
Strategies
IV. WIPO, Developing Countries and Intellectual Property
V.
WIPO and Non-Traditional Intellectual Property Rights
VI. Conclusion
I. Introduction
On 13-18 June 2004, political leaders from over 100 developing countries met in São Paulo, Brazil, for the quadrennial United Nations Conference on Trade and Development (UNCTAD). The goal of the conference was to serve as an organizing forum for developing countries to
1
An earlier version of this paper was prepared for the seminar “One Way or
Many” taught by Dani Rodrik and Roberto Unger at Harvard Law School
in the Spring of 2003. The author thanks Sonal Shah for comments and
criticisms. The views expressed herein are the author’s only, as are any mistakes, errors or omissions.
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search for ways to ensure that trade integration and economic development are complementary.2
In addition to the usual calls for preferential market access, special
and differential treatment, and an end to agricultural subsidies in developed countries, two additional developments stand out. First, one of
the animating premises of the conference was that “trade liberalization
has been unsuccessful in many developing countries.”3 The conclusion
drawn from this premise was that developing countries should push for
trade policies and international trade rules that permit them to “integrate at their own pace, in accordance with their particular needs and
circumstances.”4 While this is far from a categorical denunciation of international trade, it sends a clear signal that developing countries are increasingly skeptical of one-size-fits-all trade and development policies.
Second, conferees identified the need for developing countries to do a
better job of consolidating their negotiating strategies in the WTO as a
means for achieving these goals.
As Part II. of this paper shall describe, the first of these developments coincides with a growing skepticism among economic development specialists about the relationship between what Harvard economist Dani Rodrik calls “first-order economic principles”—the fundamental principles that all successful economies more or less have in
place, including property rights, fiscal responsibility, sound currency,
and market-based incentives—and their specific institutional form. The
role of free trade in economic development has come under particular
fire, with domestic institutions looking more and more like the primary
driver of economic development. One of the key lessons of this literature is that domestic institutions tend to be most successful at causing
growth when they are homegrown and dynamic, but nonetheless fulfill
basic first-order economic principles.
What seems to be emerging is a consensus among the political leadership of developing countries and among economic development specialists that successful economic development strategies tend to be inter
alia context-dependent; countries at different stages of economic development and with different underlying political and economic cultures
require different development strategies. An important corollary is that
2
3
4
UNCTAD XI, available at: <http://www.unctadxi.org/templates/
Startpage____103.aspx>.
UNCTAD XI, The Conference: Development Strategies. Available at:
<http://www.unctadxi.org/templates/Page____108.aspx>.
Ibid.
Grotto, Organizing for Influence
361
developing countries generally require some measure of room to experiment with their domestic institutions. But with the trend in trade
negotiations moving more and more in the direction of relocating regulatory policy-making at a transnational level, their ability to experiment
with their institutions is increasingly limited.
There are few indications that developed countries share in the
growing skepticism over the “single-undertaking” mindset. As a result,
developing countries will likely have some difficult negotiating ahead of
them. Unfortunately, however, developing countries individually and
collectively have small markets, which severely limits their negotiating
leverage and makes them vulnerable to developed country coercion.5 Is
the way to manage this fundamental obstacle more and better organization among developing countries, as the June 2004 UNCTAD conference seems to suggest? Part III. argues for a qualified “yes” and summarizes some steps that could help developing countries adopt a more
proactive (as opposed to reactive) role in international trade negotiations.
Parts (IV.) and (V.) document and assess a recent, ongoing effort
among developing countries under the auspices of the World Intellectual Property Organization (WIPO) to cooperatively orient the global
intellectual property rights regime in a direction that better favors their
interests. This effort involves TRIPS implementation issues (Part IV.)
and the subject matters of traditional knowledge and genetic resources
(collectively, “non-traditional intellectual property”) (Part V.), and is interesting for several reasons. First, it concerns intellectual property,
which is among the more controversial developed-developing country
international trade issues. It is also one of the most comprehensive acts
of substantive harmonization of regulatory rules in the WTO framework. In addition, WIPO’s work with developing countries on TRIPS
implementation issues tends to confirm many of the characteristics
catalogued in Part III. On the other hand, this typology suggests that
5
It’s sometimes quipped that there’s no such thing as a bad trade agreement,
since all countries should in theory leave the negotiation better off than
when they came. See, e.g., A.L. McDonald, “Organisation and Management of a Complex, International, Economic Negotiation,” World Economy 23 (2000), 199 et seq. But after the Uruguay Round, there is some reason to suspect that it isn’t this simple, as the inclusion of the TRIPS
Agreement probably resulted in a net loss for certain developing countries.
See K. Maskus, Intellectual Property Rights in the Global Economy, 2000.
Developed countries threatened to punish developing countries if they
didn’t sign the deal.
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the prospects for a successful, collective push by developing countries
for including protections for non-traditional intellectual property are
dim, and would be an unwise use of their precious negotiating capital.
Before proceeding, some caveats are in order. WIPO’s work on
TRIPS implementation and non-traditional intellectual property are
still mid-stride, so the story presented in Parts IV. and V. must be regarded as incomplete and preliminary in nature. In addition, this article
makes no strong causal claims between WIPO’s work and specific outcomes at Doha (such as the limited concessions on access to medicines
achieved there). Putting together a stronger causal story of WIPO’s role
in the complicated, contentious politics of intellectual property protection since the close of the Uruguay Round is beyond the scope of this
article.6 Instead, this article has the more modest aim of showing how
institutions, in this case WIPO, can serve as the hub in a network of developing countries that helps them learn more about their options,
build stronger coalitions, and produce specific policy recommendations
that collectively strengthen their ability to resist new trade rules that are
not in their development interests, in light of ongoing research by development economists that challenges the causal relationship of free
trade and institutional harmonization to economic development.
II. International Trade, Institutional Convergence and
Poverty Reduction
In the late 1980s, a sort of development orthodoxy popularly (if
loosely) known as the “Washington Consensus” gained widespread acceptance among mainstream economists.7 It was the culmination of several decades’ worth of critique on what was previously the prevailing
view among development economists, namely that a carefully managed
trade policy had been critical to the impressive economic development
of countries like Japan, South Korea and Taiwan. The policy recom-
6
7
For an attempt to overlay a theoretical structure over this environment, see
L. R. Helfer, “Regime Shifting: The TRIPS Agreement and New Dynamics
of International Intellectual Property Lawmaking”, Yale J. Int’l L. 29
(2004), 1 et seq.
John Williamson is coined for crediting the phrase. See “What Washington
Means by Policy Reform”, in: J. Williamson (ed.), Latin American Adjustment: How Much Has Happened?, 1990.
Grotto, Organizing for Influence
363
mendation associated with the older view was that countries seeking to
develop should likewise adopt trade policies.
Anne Krueger, one of the most influential economists associated
with the “Washington Consensus”, sums its critique of the old view as:
1.) misapplying sound theory; 2.) inferring positive policy proposals
from negative results; and 3.) basing good theory on a series of “stylized
facts and premises.”8 That is, while there has always been basic agreement over the fundamental economic principles that all successful
economies must display, the two camps diverged over which specific
policies developing counties should adopt to promote growth.
A new set of policy recommendations became associated with the
“Washington Consensus”. These recommendations were highly specific
and typically advocated that developing countries adopt more or less
facsimile versions of the policies and institutions of leading capitalist
economies, especially those of the United States (e.g., liberal labor and
capital markets, openness to trade, etc.).9 One set of arguments associated with the “Washington Consensus” is that trade liberalization has
played a strong historical role in the economic development of developed countries such as the United States, that trade liberalization will
cause developing countries to grow faster, and that the particular form
that trade liberalization should take is basically that of the United
States.
Just as the “Washington Consensus” acquired mainstream acceptance in the academy and among economic development professionals,
so did trade liberalization become increasingly politically viable for developing countries in the 1980s, as the political leadership in the developing world interpreted “the export-oriented policy stance taken by the
dynamic economies of South-East Asia, and the collapse of central
planning” as evidence that liberalization, not dirigisme, held the greatest
growth potential.10 In essence, mainstream economics thinking and political will converged to create a powerful force towards trade liberalization and the substantive harmonization of regulatory institutions.
8
9
10
A. Krueger, “Trade Policy and Development: How We Learn”, American
Economic Review 87 (1997), 1 et seq.
For a list, see D. Rodrik, “Growth Strategies” (October 2003), Table 1.
Available at <http://ksghome.harvard.edu/~.drodrik.academic.ksg/growth
strat10.pdf>.
B.M. Hoekman/ M.M. Kostecki, The Political Economy of the World Trading System, 2001, 391.
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The empirical evidence supporting the causal role of trade liberalization in economic development, however, is beginning to thin. The historical record on the relationship between openness to international
trade and the economic development of countries like the United States
strongly suggests that they developed despite a farrago of trade barriers
that would make any strident neoliberal blush.11 And recent econometric estimations of the effects of trade liberalization on economic development are showing an insignificant role for that variable, at best.12
These same studies suggest that the quality of domestic institutions, not
trade (or geography), is a key driver of economic development.13
There are two additional—and important—levels of analysis that
must be carried out if this finding is to aid in the formulation of development strategies. First, the institutional characteristics that are most
relevant to economic development have to be distilled from the incredibly diverse range of institutions out there. Rodrik presents the outline
11
12
13
P. Bairoch, Economics and World History: Myths and Paradoxes, 1995, Part
I.
See, e.g., D. Acemoglu/ S. Johnson/ J. Robinson, “Institutions as the Fundamental Cause of Long-Run Growth,” National Bureau of Economic Research Working Paper No. W10481 (2004); D. Rodrik/ A. Subramanian/ F.
Trebbi, “Institutions Rule: The Primacy of Institutions Over Geography
and Integration in Economic Development,” Journal of Economic Growth
9 (2004), 131 et seq.; R.B. Freeman, “Trade Wars: The Exaggerated Impact
of Trade in Economic Debate,” World Economy 27 (2004), 1 et seq. This
point should not be mistaken as a claim that trade liberalization cannot fuel
growth. See, e.g., A. Subramanian/ Shang-Jin Wei, “The WTO Promotes
Trade, Strongly but Unevenly,” National Bureau of Economic Research
Working Paper No. W10024 (2003). The problem for developing countries
is that in order for trade to fuel growth, their domestic economies and institutions must first meet a host of ideal conditions. Since conditions in
most developing countries are typically far from ideal, trade liberalization
is not the panacea it is sometimes presented as. Cf. Rodrik, see note 9.
R. Hall/ C.I. Jones, “Why do some Countries produce so much more Output per Worker than others?”, Quarterly Journal of Economics (1999), 83 et
seq. (114); Rodrik/ Subramanian/ Trebbi, see note 12; W. Easterly/ R. Levine, “Tropics, Germs, and Crops: How Endowments Influence Economic
Development,” Journal of Monetary Economics 50 (2003), 3 et seq. Citing
these sources, Rodrik is more categorical: “There is now widespread
agreement among economists studying economic growth that institutional
quality holds the key to prevailing patterns of prosperity around the
world;” D. Rodrik, “Getting Institutions Right”, (2004), 1. Available at:
<http://ksghome.harvard.edu/~.drodrik.academic.ksg/ifo-institutions article _April 2004_.pdf>.
Grotto, Organizing for Influence
365
of such a typology.14 Focusing primarily on the impressive economic
development that has taken place in East Asia since World War II, he
suggests that quality institutions operationalize a set of principles that
any effective development strategy must have: fiscal responsibility,
sound monetary policy, prudential regulation, and market-influenced
incentives, including property rights. Second, these findings must then
be transposed into a development strategy for a particular country.
While there is still a considerable amount of research that needs to
be done on this level of analysis,15 there are nonetheless some important, general lessons about how to do this. Two of them are relevant for
purposes of the present discussion. One is that the development strategy must be politically sustainable. This seems obvious, but it is sometimes easy to forget that economic development often entails significant
redistributive consequences, which may threaten the interests of politically important groups. If a strategy is unsustainable or unrealistic, it is
of little practical use. The other lesson is that successful growth strategies tend to operationalize these characteristics in a way that leverages
local opportunities while managing or circumventing local constraints.
As Rodrik puts it, these principles “do [...] not determine the form that
institutional arrangements should or do take … [they] all come institution-free.”16 Quality institutions typically reflect a politically sustainable (though not necessarily fair or just) compromise between the efficiency of an economic policy and its distributive consequences. As
such, successful institutions tend to be homegrown and hence unique to
a particular social context.17 There is no ideal, Platonic institution that
corresponds to any of the basic principles of economic development.
This typology implies a significant critique of the more orthodox
view associated with the “Washington Consensus”: just as the causal
role of trade liberalization relative to other variables in fueling growth
and reducing poverty has come under fire, so has the notion that neoclassical economic principles generate a finite list of template institutions that countries must implement in order to jumpstart growth and
reduce poverty.18 Whereas the orthodox view tends to recommend that
14
15
16
17
18
Rodrik, see note 9.
Rodrik, “Getting Institutions Right,” see note 13.
Rodrik, see note 9.
This isn’t to say that these or any institutions necessarily evolved or were
purposefully created in light of these goals. Rodrik, see note 9.
A broader, and highly accessible critique of the Washington Consensus is J.
Stiglitz, “More Instruments and Broader Goals: Moving Toward the Post-
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developing countries more or less adopt facsimiles of Western institutions, the critique says that countries tend to grow fastest when their institutions are competent, dynamic, and home-grown. If quality institutions tend to be homegrown, and Western-style institutions tend not to
travel well to other contexts, then rules that constrain the freedom of
developing countries to experiment with their institutions may obstruct
developing countries from achieving their growth potential.
Thus, one of the overarching lessons of this critique is that developing countries need space to experiment with their institutions. But the
focus of the multilateral trade negotiations is increasingly oriented towards forging transnational regulatory procedures and substantive rules
that bind freedom to experiment, and not just the lowering of tariff and
non-tariff barriers to trade. The goal of this is to induce a convergence
of regulatory and other economic institutions among participating
countries. The implicit assumption here, however, is that the institutions we are converging towards are in fact the kinds of institutions that
are especially effective at promoting economic growth, or at least better
than the diverse institutions they replace. This assumption, however, is
looking increasingly dubious from an economic development standpoint, and the June 2004 UNCTAD conference strongly suggests that
the political leadership of developing countries have also retaken this
view.
Developing countries need flexibility to experiment with their institutions, but it is that flexibility that positive integration curtails. Meanwhile, the strong causal arguments made on behalf of the growth effects
of international trade are looking more and more doubtful.
This should sound a note of caution for developing countries about
accepting international trade rules that require them to import foreign
institutions. Positive integration may not always be conducive to economic development. Indeed, if it unduly stifles the capacity of developing countries to experiment with their institutions, it might even be
counterproductive. How can developing countries more effectively assert their development interests in international trade negotiations?
Washington Consensus,” 1998 WIDER Annual Lecture, Helsinki, Finland.
Available at: <http://www.globalpolicy.org/socecon/bwi-wto/stig.htm>.
Grotto, Organizing for Influence
367
III. Working Typology of Successful Developing
Country Negotiating Strategies
This Part of the article presents a critical summary of work on the political economy of trade negotiations between the developed and developing world, focusing in particular on how developing countries can
collectively maximize their limited bargaining power.19
Putting aside all pretenses about the Doha Round being primarily
about economic development,20 an important question is whether developing countries can as a practical matter withstand efforts by the
United States, the European Union, Canada and Japan (known as “the
Quad”) to require them to adopt facsimiles of Western institutions. The
TRIPS Agreement, which is arguably the most blatantly unfair feature
of the international trading regime enshrined by the WTO,21 is perhaps
19
20
21
This Part draws heavily on P. Drahos, “When the Weak Bargain with the
Strong: Negotiations in the World Trade Organization”, International
Negotiation 8 (2003), 79 et seq.
I do not mean to imply that trade ministers from wealthy countries are being duplicitous. I mean only to suggest that their primary job is to promote
the interests of domestic producers in their constituencies, and that any
concessions they make to economic development will have been made only
to the extent necessary to secure the agreement of developing countries.
The arguments that were advanced in favor of it are generally weak or simplistic. For example, the argument that IP protection is in the long-term interests of developing countries, almost all of whom are net importers of IP,
is simplistic because many countries are a long way from being able to attract or sustain the types of industries where IP rights are especially important (such as in high-technology fields). Moreover, any benefits a country
might receive from establishing OECD-levels of IP protection must first be
weighed against the tremendous costs associated with implementing and
enforcing a new IP regime, and second against the fact that IP protection
often entails higher prices for inputs, many consumer products, and pharmaceuticals. Hoekman/ Kostecki, see note 10, 290 et seq. The development
benefits of IP vary widely by country, see K. Maskus, “Intellectual Property Rights and Economic Development”, Case W. Res. J. Int’l L. 32
(2000), 471 et seq., and the only allowance that TRIPS makes for this is a
three-tiered implementation phase, where developed, developing, and least
developed countries have different implementation time-tables. The argument that TRIPS must be appraised in light of the overall package of benefits that fell to the developing countries as a result of the Uruguay Round is
also weak. For many developing countries, the rent transfer associated with
TRIPS resulted in a substantial net transfer of rents out of the country,
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the most poignant example of developing countries’ difficulties in resisting determined efforts by “the Quad” to impose Western-style institutions on the developing world. “The Quad”, led by the United States,
strong-armed developing countries into accepting TRIPS by threatening to sanction recalcitrant countries and/or eliminate their Generalized
System of Preferences (GSP) status.22 This was an effective bargaining
strategy for the United States and its economic allies, since during the
1980s developing countries had become increasingly dependant on access to developed countries’ markets.23 In addition, developed countries
made concessions of their own that were intended to sweeten the Uruguay Round deal for developing countries.24 “The Quad” has generally
been slow to implement this component of the bargain, and developing
countries have a difficult time enforcing compliance. In addition, developing countries don’t have the funds and the expertise to play a sustained role in debates over the substance of TRIPS.25
Sell aptly describes the situation facing developing countries:
“With the exception of initial developing country resistance, opposition to TRIPS emerged rather late—after its adoption. This implies
that while TRIPS cannot be “undone” in any direct sense, the fight
over loopholes, alternative interpretations of vague language, and
perhaps, most importantly, effective resistance to further expansion
of global intellectual property rights lie ahead. This suggests some
22
23
24
25
wiping out a considerable degree of the benefits reaped elsewhere in the
Round. Ibid., at 292-293. In addition, developed countries have not fully
implemented their end of the quid pro quo for TRIPS, namely liberalization of their textile and clothing markets.
S. Sell, “Intellectual Property Protection and Antitrust in the Developing
World: Crisis, Coercion, and Choice”, International Organization 49
(1995), 315 et seq.
Sell, see note 22, 324-325.
For an overview, see P. Drahos, “Global Property Rights in Information:
the Story of TRIPS at the GATT”, Prometheus 13 (1995), 6-19. See also
Hoekman/ Kostecki, see note 10, 297-299.
But with the help of NGOs and other civil society actors, they were able to
successfully achieve greater freedom to grant compulsory licenses on
pharmaceutical patents and parallel import generic drugs from other countries. See S. Sell, “TRIPS and the Access to Medicines Campaign”, Wisconsin International Law Journal 20 (2002), 481 et seq. (522); R. Mayne, “The
Global NGO Campaign on Patents and Access to Medicines: An Oxfam
Perspective”, in: P. Drahos/ R. Mayne (eds), Global Intellectual Property
Rights: Knowledge, Access and Development, 2002, 244.
Grotto, Organizing for Influence
369
limits to the type of governance that TRIPS’ architects had in mind,
but it also opens up possibilities for more balanced democratic governance of intellectual property. The deck is still stacked in favor of
a commercial, as opposed to social, agenda …”26
If it is hard for developing countries to push back against proposals
and interpretations by “the Quad” that are not entirely growth-friendly
or effectively enforce WTO rules in their favor,27 then it is doubly hard
for them to adopt a proactive role in actively shaping the international
trade agenda in a more development friendly way.
Drahos identifies four sources of bargaining power in trade negotiations: market power, commercial intelligence networks, coalitionbuilding skills, and the capacity of a negotiator to make binding commitments.28 He suggests that the first two—market power and commercial intelligence networks—are the most important.29 The last one is
irrelevant for present purposes. The importance of market power is obvious: the more dependent an exporting country is on another country’s
market, the greater its interest in guaranteeing access to it, and hence the
greater the negotiating leverage of the importing country. Commercial
intelligence networks are also important because they enable a country
to formulate an accurate assessment of the costs and benefits of a bundle of concessions. Developing countries are weak on both counts: they
have very little market power, and the density of their commercial intelligence networks compared to the United States and other members of
“the Quad” is paltry, since they have nothing like the corporate and
governmental resource base of developed countries. Indeed, many
countries have few or no diplomats at the WTO in Geneva.30
Coalition building skills are an intuitive source of potential bargaining power for developing countries: as the old saying goes, “there is
strength in numbers.” Developing countries make up over two-thirds
of the WTO’s membership, so they certainly have raw numerical
strength on their side. It is also well-documented that developing coun26
27
28
29
30
Sell, see above, 498.
On the other hand, the developing countries have so far managed to fend
off attempts by “the Quad” to introduce labor and environment standards
into the WTO framework.
Drahos, see note 19, 82 et seq.
Drahos, see note 19, 83 et seq.
For an analysis of the problems facing African countries in particular, see
R. Blackhurst/ B. Lyakurwa/ A. Oyejide, “Options for Improving Africa’s
Participation in the WTO,” World Economy 23 (2000), 491 et seq.
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tries tend to fare much better in multilateral WTO negotiations than
they do when they negotiate with developed countries on a bilateral basis. Unfortunately, however, the ability of sheer numbers to compel
fairer trade agreements is limited. “The Quad” economies are so big and
developing countries’ economies are generally so small in comparison
that even a reasonably strong coalition of developing countries would
still have little bargaining leverage.31 In addition, the negotiating norms
and conventions that typically inform multilateral trade negotiations do
not work in developing countries’ favor: the practice of building consensus in GATT and WTO negotiations typically begins by securing
the consensus of the most powerful countries, and then proceeds to
bring ever more countries on board. By the time this effort reaches developing countries, the costs of withholding consent are strong, so developing countries typically just “let the consensus juggernaut roll
on.”32 Finally, developing countries sometimes have different interests
and goals on particular issue areas, which can make it difficult for them
to collectively develop the sort of detailed, specific negotiating strategy
that modern trade negotiations demand or to sustain a common front
when the consensus juggernaut appeals directly to individual countries’
self-interest.
Nevertheless, coalitions among developing countries (and other actors, such as NGOs, international institutions, or more powerful
states), do hold some promise to improve the ability of developing
countries to assert and defend their economic interests. While there is
no substitute for market power, the right kind of coalition can maximally leverage what market share its members do have, enhance its
members’ ability to acquire more and better information about the
costs and benefits of alternative negotiating strategies, and boost the legitimacy of the group’s negotiating positions by demonstrating a broad
consensus over any inherent validity they might enjoy (for instance, a
proposal that accords with conventional economic or moral thinking
will enjoy some inherent validity). At the same time, the coalition
should produce practical, specific proposals and find ways to sustain
cohesion in light of the fact that developing countries are not monolithic—a coalition that tries to be all things for all its members will often
have to sacrifice specificity for consensus.
31
32
For example, the 48 least-developed countries make up only 5 per cent of
world trade. Hoekman/ Kostecki, see note 10, 9.
Drahos, see note 19, 86.
Grotto, Organizing for Influence
371
In their examinations of the Cairns Group of Fair Trading Nations,
an influential coalition of free-trade oriented, highly-competitive agricultural exporters comprised largely of developing countries, Drahos,
Higgot and Cooper, identify several features of relevance to the ability
of developing countries to leverage their numbers and forge a more effective coalition.33 First, there must be a coincidence of self-interest
among the coalition members that is sufficiently robust to generate specific goals and negotiating postures. This requires effective leadership to
keep the coalition fixed on reaching agreement over specific goals while
avoiding a breakdown of the coalition in the process. In the Cairns
Group, Australia and Canada—wealth countries with strong repute in
the international community—were able to bring their considerable
analytic resources to bear on group tasks and use their good offices to
sustain the cohesion of the coalition, help promote strong communications among group members, and facilitate the exchange of information.
The substantive research the coalition produced on the costs and benefits of agricultural protectionism in developed countries also jibed with
current fashions about the benefits of trade liberalization while simultaneously shaming developed countries’ protectionism by documenting
the harm this does to developing countries. Their proposals made good
economic sense, and could be used to generate a strong moral critique
of protectionism by showing how much it hurt people in developing
countries. On the other hand, since the Cairns Group focused exclusively on agriculture, rifts among participating countries over other potentially divisive topics didn’t directly threaten the viability of the
group.34 The access to medicines campaign started in 1996 by NGOs
and developing countries had similar features: effective leadership by
the highly-respected Quaker United Nations Office, an NGO, solid research that rebutted key claims made by opponents of the campaign
and made the costs of inaction difficult to contest, specific policy proposals, and a strong public relations campaign that shamed opponents.35
Finally, the Cairns Group comprises a significant share of the global ag-
33
34
35
Drahos, see note 19, 79; R.A. Higgott/ A.F. Cooper, “Middle Power Leadership and Coalition Building: Australia, the Cairns Group, and the Uruguay Round of Trade Negotiations,” International Organization 44 (1990),
589 et seq.
Drahos, see note 19, 79.
Drahos, see note 19, 94-95.
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ricultural market, leading Higgot and Cooper to call it “a third force in
the context of the GATT negotiations.”36
There is no reason to think that operationalizing these features
would necessarily guarantee developing countries a stronger, more proactive voice in international trade negotiations. They did, however, facilitate the ability of the Cairns Group and the access to medicines
campaign to more effectively assert their interests. As we look ahead to
the Doha Round and beyond, and behind to see how ineffective developing countries have been in asserting their interests, it should be clear
that developing countries face an uphill battle. The more we learn about
what sort of arrangements, including institutional ones, best facilitate
their capacity to effectively negotiate, the better the chances that the
Doha Round produces development-friendly agreements.
The next two sections document and assess WIPO’s role in helping
developing countries more effectively assert their interests along two
dimensions. The first dimension pertains to the considerable implementation challenges that TRIPS posed to many developing countries.37
WIPO was tasked with helping developing countries implement their
TRIPS obligations, and has served as a forum for them to develop a
stronger, more cohesive voice over implementation challenges. The
characteristics of this effort confirm the many features of the typology
described above. The second dimension, considered in Part V., is serving as a forum, organizing partner and source of technical assistance for
developing countries striving to develop domestic legal frameworks for
establishing and protecting non-traditional intellectual property rights.
IV. WIPO, Developing Countries and Intellectual
Property
WIPO’s role in the international trade regime is unique. It is a specialized United Nations agency with a mission to afford the development
of intellectual property rights. It is not part of the formal WTO institutional framework, though it is the host institution for most pre-TRIPS
36
37
As Drahos points out, however, in the Uruguay Round “domestic market
power was not the fundamental source of the Cairns Group’s success”;
Drahos, see note 19, 92.
For an overview of these challenges, see Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development
Policy: Report of the Commission on Intellectual Property Rights, 2002, 137.
Grotto, Organizing for Influence
373
intellectual property treaties. In 1995 WIPO and the WTO signed the
“WTO-WIPO Agreement,” whereby WIPO accepted the bulk of the
responsibility for providing technical expertise and assistance to developing countries seeking to make their laws TRIPS-compliant.38 Though
WIPO does not directly and formally advocate on behalf of developing
countries, this arrangement effectively made WIPO the institutional
hub and sounding board for developing countries’ concerns about the
TRIPS Agreement. It also situated WIPO as an interlocutor between
developing countries and developed countries.
In this capacity, WIPO has organized a lengthy series of regional
symposiums for developing countries on the implementation of the
TRIPS Agreement beginning in 1996, shortly after the WTO-WIPO
Agreement entered into force.39 WIPO held them in locations that are
easier for developing countries’ representatives to attend than Geneva.
WIPO also paid many participants’ travel costs. These events were an
important vehicle by which developing countries compared and shared
their experiences over the implementation of TRIPS. Signs of disappointment among developing countries over the perceived fairness of
TRIPS and the daunting implementation challenges that lie before them
emerged early on in these symposia. WIPO also commissioned several
studies on the implications of the TRIPS Agreement for developing
countries. These and other studies poignantly identified the costs developing countries faced in building the institutional capacity needed to
ensure that their intellectual property rights regimes satisfied the
OECD-level standards set forth in the TRIPS Agreement.40
38
39
40
See WTO-WIPO Agreement, article 4, entered into force 1 January 1996,
available at: <www.wipo.org>. In October of 1995, the WIPO General Assembly made it clear that WIPO would be responsible for “respond[ing] to
requests from developing countries to WIPO for legal and technical assistance relating to the TRIPS Agreement.” The two organizations strengthened WIPO’s role as an intermediary between developing countries and the
TRIPS Agreement in 1998 with additional technical cooperation. See
PRESS/108 of 21 July 1998, “WTO and WIPO join forces to help developing countries meet year-2000 commitments on intellectual property,” available at: <http://www.wto.org/english/news_e/pres98_e/pr108_e.htm>.
Governing Bodies of WIPO and the Unions Administered by WIPO,
Thirty-First Series of Meetings Geneva, 22 September to 1 October 1997;
Overview of Activities and Developments in the Year 1996 and the First
Half of the Year 1997, Doc. AB/XXXI/6 of 31 July 1997.
Cf., e.g., Maskus, see note 5.
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While significant implementation challenges lie ahead—especially
for least-developed countries—WIPO’s work should be regarded as a
preliminary success, as it helped these countries learn more about the
implementation obstacles they faced, how to overcome them, and the
costs associated with implementing a TRIPS-compliant regime. 41
WIPO helped developing countries better understand just how costly
the TRIPS Agreement is, at least in the short-run, and appears to be the
first sustained effort to study and address the relationship between international trade and economic development in an organized, collective
forum comprised of a broad cross-section of developing countries.
These efforts owe their success to several factors. These factors confirm
the importance of many of the criteria identified in Part III. as relevant
to active developing country participation in the international trade regime.
First and probably foremost, the fact that developing countries generally faced high implementation costs furnished a common ground for
them to begin to think more systematically about the relationship between intellectual property as it relates to international trade and economic development. WIPO, for its part, had experience with IP issues
of concern to developing countries, so it made sense to make it a key interface between developing countries and the WTO on matters pertaining to intellectual property. Since its inception in the mid-1970s, WIPO
has helped developing countries to develop indigenous intellectual
property regimes. Intellectual Property did not become an international
trade issue in the context of GATT/WTO until the TRIPS Agreement,
and so WIPO’s developing country initiatives prior to then were focused entirely on economic development and not on the institutional
convergence required by TRIPS.42
41
42
It would be inappropriate to attribute any failure on the part of certain developing countries to implement their TRIPS obligations to a failure on
WIPO’s part; WIPO can’t make countries implement their obligations, nor
is it in a position to provide substantial funding for countries’ implementation efforts.
During this time, for example, WIPO and UNESCO jointly produced
“Model Provisions for National Laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions,” which
emphasize the cultural rights and human rights elements of folklore, and
not the Anglo-American utilitarian justification for intellectual property
protection that dominates mainstream international intellectual property
discourse. See in this respect UNESCO/WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit
Grotto, Organizing for Influence
375
This initiative was aimed at helping developing countries to develop
a capacity for safeguarding their folklore against exploitation by Intellectual Property producers in developed countries, which had defended
their appropriation of folklore by claiming that this material did not
qualify for copyright or other protection on the basis of it not being either new or creative, i.e. failing the utility test that underpins most Intellectual Property regimes.43 To cite another example, when the Convention on Biological Diversity called for the creation of a benefitsharing and sustainable development scheme to manage international
trade in genetic resources, WIPO took the lead and developed model
material transfer agreements, and situated itself as the leading forum for
hosting consultations on this topic.44 WIPO also accepted a commission from UNEP to undertake a study, entitled “Biological Diversity
and Biotechnology,” which examined the “links between intellectual
property aspects of biotechnology and the conservation, use, and benefit-sharing of biological resources” in light of the Convention on Biological Diversity.45
Moreover, WIPO effectively organized an intelligence network for
developing countries on the distributive consequences of the TRIPS
Agreement and the relationship between TRIPS and economic development more broadly, with itself as a hub in that network. The empirical record that WIPO helped to create on the probable distributive consequences and the implementation costs of TRIPS furnished developing
countries with an ethical platform from which to critique developed
countries’ foot-dragging on implementing their commitments on such
things as agriculture and textiles. WIPO did not engage in advocacy on
behalf of its constituents in the same way that the Cairns Group or participants in the access to medicines campaign did. Instead, it facilitated
the beginnings of an effective coalition among developing countries on
intellectual property—an important step towards the more proactive
role that they must take in the future if they are to ensure that trade
rules are in their development interests. Such an effort was certainly ab-
43
44
45
Exploitation and Other Prejudicial Actions (1982), available at:
<http://users.ox.ac.uk/~wgtrr/modprovs.htm>.
Under the dominant United States paradigm of intellectual property, IP
rights are granted to ensure a socially optimal level of IP production.
Other specialized UN agencies, such as the UNDP also took a leading role,
in consultation with WIPO.
Main Program 11, “Global Intellectual Property Issues,” Doc.
A/32/2WO/BC/18/2, <http://www.wipo.int/eng/document/govbody/wo_
gb_ab/pdf/prg11.pdf>
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sent during the Uruguay Round, where developing countries failed to
organize a robust coalition against including intellectual property in the
WTO framework. Some have suggested that if developing countries had
better understood the distributive consequences of TRIPS and the costs
of implementing it, they would have collectively resisted the Agreement
far more strenuously, and possibly extracted more concessions from
proponents of TRIPS. While we can only speculate whether developing
countries would have been able to successfully prevent intellectual
property from being made subject to WTO discipline even if they had
fully grasped what they were getting into, WIPO’s work has undoubtedly helped them better understand the distributive consequences and
implementation costs of TRIPS ex ante, while enabling them to develop
a clearer, more cohesive sense of common purpose and interest. As the
next Part describes, WIPO also helped enable developing countries to
more effectively raise the issue of non-traditional intellectual property
rights as a trade issue, an area developed countries have no interest in
subjecting to WTO discipline.
V. WIPO and Non-Traditional Intellectual Property
Rights
There is no generally accepted definition for which forms of knowledge
or resources would or should enjoy protection under a non-traditional
intellectual property rights regime. Here, traditional knowledge shall
refer to genetic resources, folklore and folk wisdom. Rights granted and
duties imposed might include inter alia disclosure requirements on the
geographic origin of genetic resources, or the right to collect fees for using the knowledge and block the exploitation or misappropriation of
the knowledge. The Doha Ministerial Declaration in 2001 directed the
TRIPS Council to “examine” the relationship between TRIPS and nontraditional intellectual property rights.46 While this is far from a guarantee that non-traditional intellectual property rights will be added to a
future WTO bargain, it nonetheless merits attention because attempts
by developing countries acquired no traction in the Uruguay Round
negotiations. Now, however, non-traditional intellectual property rights
are being formally explored and discussed in the WTO with some
eye—at least among many developing countries—towards a possible
role in the WTO system.
46
Para. 19 of the Doha Ministerial Declaration.
Grotto, Organizing for Influence
377
As we shall see below, WIPO has helped developing countries insert
TRIPS into the more mainstream (at least from OECD country’s viewpoint) debates over trade and Intellectual Property for two reasons.
First, as in its work on TRIPS implementation issues, WIPO facilitated
the emergence of a more effective coalition of developing countries
seeking to introduce non-traditional intellectual property rights into
debates over trade and intellectual property. Second, it helped developing countries collapse the distinction between trade/non-trade, developed/developing country intellectual property issues. Successfully raising an interest, however, is a long way from seeing that interest implemented. The remainder of the section shall then explore the prospects
for success in this endeavor.
As WIPO fulfilled its mandate to assist developing countries in the
implementation of the TRIPS Agreement, it also continued to pursue
various programs and initiatives designed to advance the development
of intellectual property rights outside the immediate context of TRIPS
and international trade. These programs focused on a variety of issues,
which tend to separate out into issue areas dominated by developed
countries on the one hand (e.g., internet domain names, biotechnology
and patents, database protection), and topics of concern for developing
countries on the other hand (e.g., the work of the Permanent Committee on Cooperation for Development Related to Intellectual Property).
Until the Uruguay Round, this was a familiar pattern in WIPO programming because developing countries typically had little interest in
mimicking the Intellectual Property regimes of the developed world. As
a result, WIPO programs were generally segregated along developed/developing country lines.
WIPO’s programming on institutional and legal frameworks for
protecting traditional knowledge, which as we saw earlier dates back to
the early days of the agency, fit this description. This work greatly expanded in the late 1990s, however, as domestic and international efforts
to develop legal regimes for protecting traditional knowledge intensified. The genesis of this expansion is interesting because elements of it
seem to have emerged out of a series of consultative committees that
pertained primarily to topics of concern for developed countries. In
1998, WIPO members created several Standing Committees comprised
of governmental representatives from mostly OECD countries to discuss emerging Intellectual Property issues.47 The overwhelming bulk of
47
For a description of the activities of the Standing Committee for the Law
of Patent, the Standing Committee for the Law of Trademark, Industrial
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Max Planck UNYB 8 (2004)
these Committees’ agendas involve emerging Intellectual Property issues that are of special interest to developed countries. Nevertheless, it
was during the meetings of these Committees that the movement towards a specialized discourse on non-traditional intellectual property
rights under the auspices of WIPO acquired real momentum. The relationship of biotechnology, patent and non-traditional intellectual property rights first arose at the Third Session (6-14 September 1999) of the
Standing Committee on the Law of Patents (SCP). In response to organized pressure from developing countries, the SCP recommended
that the Working Group on Biotechnology pursue a more ambitious
multilateral discussion program that would include the relationship of
non-traditional intellectual property rights to biotechnology patent
protection.48
The Working Group accepted the SCP’s suggestion, and included in
its general survey of Member States’ practices regarding the protection
of biotechnology inventions a series of queries about biotechnology
and traditional knowledge relating to the use of genetic resources.49 The
SCP further recommended that WIPO organizes a specialized “Meeting
on Intellectual Property and Genetic Resources,”50 which ultimately
took place on 17-18 April 2000.51 The Chairman’s Report from that
meeting concluded that WIPO should create a specialized forum for
discussing these issues.52 The subject of genetic resources also emerged
at the 11 May to 2 June 2000 Diplomatic Conference for the Adoption
of the Patent Law Treaty, with the consensus policy statement produced at the end of the Conference calling for continued discussions of
48
49
50
51
52
Designs and Geographical Indications, and the Advisory Committee on the
Enforcement of Industrial Property Rights, see <http://www.wipo.org/
activities/en/index.html?wipo_content_frame=/activities/en/development_
iplaw.html>. See <http://www.wipo.org/copyright/en/index.html> for information relating to the Standing Committee on Copyright and Related
Rights.
See Doc. SCP/3/11, para. 208.
WIPO General Assembly, “Matters Concerning Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore,” Doc.
WO/GA/26/6, page 2. See also “WIPO Member States Discuss Intellectual
Property and Genetic Resource Issues” (19 April 2000). Available at:
<http://www.wipo.int/pressroom/en/updates/2000/upd96.htm>.
See note 47.
Doc. WO/GA/26/6, para. 7.
Doc. WO/GA/26/6, para. 7.
Grotto, Organizing for Influence
379
genetic resources at WIPO.53 Developing countries used a forum principally of, by and for developed countries as a launch-pad for creating a
forum more closely attuned to their interests. WIPO provided developing countries with a structure that lowered the costs of organizing.
At the same time as discussions on genetic resources were taking
place, WIPO initiated consultations on other non-traditional intellectual property rights. In 1998, WIPO sponsored, in collaboration with
the United Nations High Commissioner for Human Rights, a “Panel
discussion on Intellectual Property and Human Rights.”54 WIPO also
hosted in 1998 a “Roundtable on Intellectual Property and Indigenous
Peoples”.55 In 1999 WIPO sponsored a series of Regional Consultations for developing countries on the protection of folklore in collaboration with UNESCO. Like the Regional Symposia, these consultations
also involved WIPO going to the developing countries, as opposed to
the developing countries traveling to WIPO, to share national experiences about protecting traditional knowledge, develop a common body
of expertise on the topic,56 and otherwise help developing countries
build a legal and institutional capacity for protecting traditional knowledge.
Here, as in its work on TRIPS implementation issues, WIPO served
as a forum and facilitator for developing countries to consolidate a
more cohesive position. This enabled developing countries to collectively assert their interests more effectively. By facilitating the exchange
of information among participating countries and hosting consultative
and education workshops, WIPO also helped them acquire technical
expertise about traditional knowledge and ways to protect it that would
otherwise have been very expensive to obtain. In essence, WIPO lowered the costs of organizing and information gathering. Moreover, the
fact that WIPO’s programs on non-traditional intellectual property
rights—and implementation of TRIPS, for that matter—are limited to
53
54
55
56
Doc. WO/GA/26/6, para 9.
Available at: <http://www.wipo.int/globalissues/activities/1998/human
rights/index.html> for an index to the documents produced for and by this
event.
For an index to the documents produced by this event, see <http://www.
wipo.int/eng/meetings/1998/indip/index.htm>.
See, for example, WIPO, “Intellectual Property Needs and Expectations
of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions 1998-1999,” see under <http://www.wipo.int/tk/en/tk/ffm/report/
index.html>.
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intellectual property matters means that other issues do not distract or
undermine developing countries’ cooperation and consultations.
Developing countries have succeeded in raising the issue of nontraditional intellectual property rights in the WTO, but what are the
prospects for putting the protection of traditional knowledge on the
negotiating table as the Doha Round moves forward? To the extent developing countries want non-traditional intellectual property rights enshrined as a WTO discipline, they are highly unlikely to succeed. Consider again the general typology elaborated in Part II. above for leveraging developing countries’ strength in numbers into greater influence:
significant market share, a commercial intelligence network, strong
leadership, mechanisms for building coalitions, and coherence with
generally accepted principles of economics or morality. Significant market share, as was suggested, is most important because it is most directly
relevant to the concrete stakes of the negotiations—namely market access—but also the one where developing countries are typically weakest. Non-traditional intellectual property rights imply a fairly straightforward rent transfer from developed countries, which currently pay
nothing for traditional knowledge, to developing countries, which are
typically the source of this knowledge and would presumably now have
enforceable ownership rights in it. In addition, it would require developed countries to institute sui generis protection for traditional knowledge. Implementation costs for “the Quad”—who presently have no serious efforts underway to create rights in traditional knowledge—could
be high. The rent transfer associated with non-traditional intellectual
property rights would be intensely transparent, and some of the most
powerful conceptual arguments behind granting rights in traditional
knowledge involve environmental and cultural preservation and dignity
issues that do not fit neatly into the more utilitarian, Anglo-American
framework that dominates conventional thinking about IP. Thus, the
granting of strong, sui generis, rights in traditional knowledge would
entail a fairly radical departure from conventional thinking in OECD
countries—especially the United States—about the role and purpose of
intellectual property. In sum, the price for getting “the Quad” to agree
to international rules on traditional knowledge would be very high and
require developing countries to make costly concessions on other topics.57
57
In light of how costly the protection of traditional knowledge would be to
developed countries, the price may be so high that developing countries
simply couldn’t afford them even if they were willing to pay whatever it
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381
In closing, it is important to note that the pursuit of an international
regime for non-traditional intellectual property rights may not be in all
developing countries interests. As we saw in Part II., we cannot assume
that uniform, international rules are necessarily in any particular developing country’s best development interests. For example, not all developing countries have significant traditional knowledge resource bases,
and enforceable rights in some forms of traditional knowledge—such as
genetic resources—could raise the costs of many important goods, such
as pharmaceuticals. In addition, international rules would impose implementation costs on those countries that do not have non-traditional
intellectual property rights regimes that are up to whatever international standards are set. Traditional knowledge-rich countries can always build domestic non-traditional intellectual property rights regimes, and use that regimes to uphold the dignity of cultural traditions
and protect against their exploitation, or to exact rents from would-be
users of the countries traditional knowledge resources. With the help of
WIPO, they might well succeed.
Finally, there are also reasons to think that WIPO’s ability to serve
as an honest broker between developed and developing countries on IP
issues is limited. WIPO’s raison d’etre is to promote intellectual property rights, and most of the interesting and lucrative issues relating to
intellectual property pertain to topics of principal interest to developed
countries. In addition, WIPO receives 85 per cent of its revenues from
the Patent Cooperation Treaty, a treaty heavily relied upon by pharmaceutical companies, biotech firms, and other important constituencies
for developed countries, and is firmly behind the Substantive Patent
Law Treaty deliberations.58 These moral hazards could hamper WIPO’s
ability to be an effective source of assistance to developing countries
and an honest broker between developing and developed countries.
VI. Conclusion
Looking ahead at the issues that are currently on the table at Doha,
many of the most intensely felt interests of developed countries involve
58
takes. For more on the question of which subjects should be included in
the WTO framework, see H. Hestermeyer, “The Language of Trade Linkage: Lessons for the Singapore Issues Learned From Trips”, unpublished
manuscript on file with author.
Sell, see note 25, 519.
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positive integration and greater institutional convergence: labor and environment standards, competition policy, investment, procurement and
trade facilitation. Without passing judgment on any of these in particular, what is clear is that recent economics research on the relationship
between trade and economic development on the one hand, and the role
and successful characteristics of domestic institutions on the other
hand, counsels that a greater burden of proof be put on those who advocate institutional convergence under the guise of promoting economic development. The question explored here has been how developing countries can resist this pressure, or at least ensure that it not run
counter to their economic growth strategies, given their inherently
weak bargaining position as a result of having small markets.
Scholars have identified several important characteristics of the type
of cooperation that seems most likely to result in greater negotiating
leverage for developing countries. WIPO’s work with developing countries on TRIPS implementation tends to confirm many of these characteristics. Compared to ten years ago, developing countries appear to be
far better organized and better versed on intellectual property issues.
WIPO facilitated the ability of developing countries to organize into a
more formidable coalition of TRIPS-skeptics by facilitating the exchange of national experiences with Intellectual Property and helping
developing countries develop a clearer picture about the scope of their
obligations. On the other hand, the future of non-traditional intellectual property rights as an international trade issue is dim.